Miscellaneous. (Hansard, 8 June 1876)

§ MR. FAWCETT
moved the omission of certain words in order to provide that certain commons (which he named) might be brought under the regulation clauses of the Bill, and so saved to the people for purposes of enjoyment and recreation. The commons to which he referred were situated in the neighbourhood of large towns, many of them places in which manufactures were carried on, and the populations of which therefore stood in need of as much fresh air and space for exercise as could be obtained. Under the scheme of the Inclosure Commissioners the portion of these commons proposed to be set apart for recreation grounds was altogether inadequate. To inclose many of the commons, which were very small, would be of no real advantage to anybody, to leave them open under the regulation clauses would prove an immense boon to the teeming populations resident in their neighbourhood. If the old law was inadequate to prevent the public being wrongfully dispossessed of privileges of great value to them, and did not give proper security against wrongful inclosures and for ample reservations in favour of the poor, was it, he asked, unreasonable that the commons he had referred to should be rendered subject to the operation of the present Bill? If he was told in reply that Provisonal Orders had been made for them on the Report of the Commissioners, he would ask what became of the control of that House with respect to any inclosures for which Provisional Orders had been given? Under all the circumstances, he hoped some alteration would be made in the Bill with regard to the commons to which he alluded.

Mr. ASSHETON CROSS
said, that technically speaking, the retention or omission of the words referred to in the Amendment of the hon. Member would, as he had been advised, make little difference so far as the operation of the clause was concerned, but the point raised—namely, What was to become of those inclosure schemes which had already passed through the ordeal of the Inclosure Commissioners?—was one of considerable importance. Certain 1564 schemes had been passed by the Inclosure Commissioners, and a certain amount of expense—about £700 he understood—had been incurred by the parties interested in those schemes, giving an average of a little more than £30 in each case. He would remind the hon. Gentleman that the awards of the Inclosure Commissioners were of no avail until they were confirmed by Parliament. Of late years Inclosure Bills had been introduced, but very few indeed, if any, had passed. He had been in communication with the Inclosure Commissioners on the subject, and the result of his consideration of the matter was this—he would submit a clause on the Report authorizing the Secretary of State to send schemes, Provisional Orders, or whatever they might be called, to a small Committee consisting of one of the Inclosure Commissioners and other Gentlemen selected by him to be further considered by them. On their Report the Secretary of State would form his opinion, and, if necessary, would refer the scheme back to the Commissioners to consult as to the steps to be taken under the altered circumstances of the case. Many of the schemes referred to the House, he believed, would never sanction; but there were others which he thought ought to be agreed to without further expense or delay.

§ MR. BERESFORD HOPE
said, he was in favour of the Amendment; but he considered the statement of his right hon. Friend so satisfactory that he thought the matter might safely be left in his hands.

§ MR. SHAW LEFEVRE
was glad that the Home Secretary proposed to bring up a clause on the Report to enable him to refer back certain schemes to the Inclosure Commissioners, and he trusted that when the clause was presented it would prove sufficient for the purpose.

§ MR. GREGORY,
with reference to the allotments made by the Commissioners which had been alluded to, pointed out that they had been acting under the Act of 1845, under which the acreage for allotments was strictly limited.

§ LORD HENRY SCOTT,
now that the Home Secretary had undertaken to deal with the question, hoped that there would be an end to the objectionable schemes which had been too often sanctioned by the Commissioners.

§ MR. FAWCETT
expressed his satisfaction at the offer of the Home Secretary, but declined to express a decisive opinion until he had seen the words of the clause.

Mr. ASSHETON CROSS
moved, after Clause 22, to insert the following clause:— (Jurisdiction of county court in respect of illegal inclosures.) A county court within whose jurisdiction any Common or part of a Common is situate shall have jurisdiction to hear, in respect of such Common, any case relating to any illegal inclosure or encroachment made after the passing of this Act, or to any nuisance impeding the exercise of any right of Common arising after the passing of this Act, and to grant an injunction against such inclosure, encroachment, or nuisance, or to make an order for the removal or abatement of such inclosure, encroachment, or nuisance. Any person aggrieved by any injunction granted or order made or refusal to grant an injunction or make an order by a county court in pursuance of this section may, on giving security for costs to the satisfaction of the county court, appeal to the High Court of Justice in a summary manner, or by special case or otherwise, as may be prescribed by rules of court to be made by the Supreme Court of Judicature in manner provided by the seventeenth section of the Supreme Court of Judicature Act, 1875. The appellate court may on hearing the appeal reverse, modify, or confirm the injunction or order complained of, or remit the case to the county court from which the appeal lay, with instructions to deal with the case according to the directions given by the appellate court. Where an appeal is lodged against the order of a county court directing the removal or abatement of any inclosure, encroachment, or nuisance, such order shall be suspended during such time as such appeal is pending. Nothing in this Act contained shall abridge or interfere with any existing right of abating or otherwise preventing any illegal inclosure of or encroachment on any Common, or any nuisance interfering with any right of Common. Until rules of court are made for the purposes of this section, an appeal may he had from the decision of any county court under this section in the same manner in which an appeal from the decision of a county court may be had in a case within its ordinary jurisdiction.

§ MR. SHAW LEFEVRE
thought the clause good as far as it went; but if the right hon. Gentleman wished to put a stop to these illegal encroachments he must be a little bolder. These arbitrary encroachments were really confiscations. He would accept the clause, although he did not think it applied a sufficient remedy.

§ LORD HENRY SCOTT
wished the clause had gone further, and desired to ask the right hon. Gentleman the Home Secretary whether he could not devise a clause which would bring all inclosures under the eye of some authority—the Inclosure Commissioners or some other body.

§ LORD EDMOND FITZMAURICE
moved, in page 3, after Clause 2, to insert the following Clause:— (Repeal of statute called the "Provisions of Merton," and of other statutes.) 2a. The following statutes shall be repealed from and after the passing of this Act, viz.:— Chapter four of the statute of the twentieth year of Henry the Third, called the 'Provisions of Merton;' Chapter forty-six of the statutes of King Edward, made at Westminster in his Parliament at Easter in the thirteenth year of his reign, commonly called the statute of 'Westminster the Second;' An Act of the third and fourth years of Edward the Sixth, chapter three, entitled 'An Act concerning the improvement of Commons and Waste Grounds.' The noble Lord said, that the effect of the Statute of Merton was to give power to the lord of the manor to enclose part of the common land without having obtained the consent of the commoners thereto; but the state of things in England was entirely changed since that Act was passed, and it had indeed become obsolete. The only practical effect of the statute now was to encourage illegal inclosures. The Committee of 1865 were, he added, unanimously in favour of its abolition, which would be desirable even merely as a matter of law reform. He was aware that it had been said that the Statute of Westminster was only declaratory of the common law, but that was a position controverted by those who had made a special study of the question.

MR. ASSHETON CROSS
pointed out that the statute was founded on the common law, and was afraid that its abolition, instead of being a reform, would lead to complications, inasmuch as it affected the titles by which the rights over commons were in many cases exercised. To interfere as proposed with those titles would, he thought, be a very strong proceeding, and he therefore hoped the Committee would not accept the clause.

§ MR. SANDFORD
said, that he believed, though opinions differed on the subject, that the Statute of Merton was not an exacting, but a declaratory statute of the common law. If the statute were repealed it would probably be necessary to go further and repeal the common law also. Whilst saying this, however, he was very much in favour of limiting inclosures by lords of the manor under the Statute of Merton.

§ Mr. SHAW LEFEVRE
said, the object of repealing this statute was, if possible, to get rid of those legal proceedings which had been frequent during the past 10 years in reference to commons. Though there was very high authority (Lord Coke) for saying that the Statute of Merton was simply declaratory of the common, there were some recent decisions which looked the other way. It had been held that the Statute of Merton did not apply to right of "turbary," and, if so, it could not be simply declaratory of the common law. The statute was practically obsolete, for the lord could never show that after his inclosure there would be sufficient land left for the commoners. He believed that the statute might be repealed without interfering with any right of importance.

§ Mr. RALLI
moved, in page 15, after Clause 15, to insert the following clause:— (Definition of power of Charity Commissioners in certain cases.) Whereas by several awards made under the authority of Inclosure Acts prior to the year one thousand eight hundred and forty-five, fuel allotments for the poor have been set out and awarded, and vested in divers persons and bodies of persons as trustees of such allotments: And whereas under the provisions of the Inclosure Acts, 1845 to 1868, and the several Acts of Parliament and awards made there- 1568 under, allotments for recreation grounds and field gardens have been set out and awarded to the churchwardens and overseers of parishes and other persons: And whereas power is claimed by the Charity Commissioners for England and Wales and by other bodies, under divers Acts of Parliament, to divert such allotments from the uses declared by Parliament respecting the same: Be it Enacted, That after the passing of this Act, notwithstanding anything in any other Act contained, it shall not be lawful (save as hereinafter mentioned) to use any such allotment, or any part thereof, for any other purpose than those declared concerning the same by the Act of Parliament and award, or either of them, under which the same has been set out: Provided, That it shall be lawful for the said Charity Commissioners, upon the written application of the trustees of any fuel allotment, and with their consent and the consent in writing of two-thirds of the persons for whose benefit the said allotment was set out, to authorise the use of such fuel allotment as a recreation ground and field gardens, or for either of those purposes, and to make an order under the provisions of "The Charitable Trusts Act, 1860," for the establishment of a scheme for the administration of such fuel allotment accordingly. He said that the object of his clause was to preserve the fuel allotments and the allotments for recreation grounds for the purposes for which they had been set apart, or, in other words, to prevent them from being diverted from the uses declared respecting them.

Mr. ASSHETON CROSS
said, he did not see why this property should have more protection than any other especial property. It would be rather hard to tie this property up without the possibility of any interference with it by the Charity Commissioners. At the same time, he saw no particular harm which the clause would do.

§ Mr. SHAW LEFEVRE
said, the substitution of land for money to be spent in coals for distribution amongst the poor was undesirable from its demoralizing effect. It would be better that it should be devoted to recreation grounds or allotment gardens. It was also desirable to stop this land from being devoted to the building of schools.

§ Mr. SHAW LEFEVRE
moved, after Clause 27, to insert the following clause:— (Proof of ancient rights over Town and Village Greens.) Whereas the strictness of proof required by law to establish a custom makes it difficult to 1569 maintain the ancient rights of the inhabitants of towns and villages over the pieces of land known as Town Greens and Village Greens, by reason that such pieces of land, being commonly unfenced, are occasionally used for recreation by other persons than inhabitants of the places in which the same lie, and also by such inhabitants themselves, for purposes other than recreation: Be it Enacted, That after the coming into operation of this Act evidence of the customary right of the inhabitants of any town, parish, vill, tithing, or hamlet to the use for purposes of recreation of any piece of land commonly known as or reputed to be the Town Green, Village Green, or recreation ground of such town, parish, vill, tithing, or hamlet, when the use thereof by such inhabitants for the purposes aforesaid has been shown during such a period as according to law constitutes user from time immemorial, shall not fail because it is proved that such piece of land has also been used for recreation by persons not being inhabitants of such town, parish, vill, tithing, or hamlet, or by some of the inhabitants thereof, for other purposes not inconsistent with such rights of recreation. Nothing in this section contained shall affect the exercise of any rights not inconsistent with the said rights of recreation which may lawfully be exercised by the owner or owners of the soil, or any other person or persons, upon or over any such piece of land.

MR. ASSHETON CROSS
opposed the clause. He thought it was necessary to prove in such cases that there was an absolute user as of right by the inhabitants of the village.

§ Mr. SHAW LEFEVRE
pointed out that as the law now stood it was practically impossible to prove the ancient rights of the inhabitants over town and village greens in the neighbourhood of large towns.

§ MR. GREGORY
moved the following clause:— (Power to raise money for improvement of Common.) A Provisional Order for the regulation of a Common may provide for the raising from time to time by such persons interested in the Common, and with such amounts as the Commissioners think fit, of money to be applied to wards the improvement of such Common, either by means of rates to be levied on the persons and in respect of the property who and which respectively will be benefitted or principally benefitted by such improvement or regulation, or by means of the sale of any outlying or other small portion not exceeding in the whole one-fiftieth part of the total area of such Common, or by means of letting the pasturage of a part of the Common for any term not exceeding twenty-one years, and mortgage of such lease. The object of the clause was for the 1570 protection of a common in North Devon known as Westward Ho.

§ Mr. SHAW LEFEVRE
objected to the latter part of the clause, as the power of letting would virtually lead to the inclosure of at least a great portion of this and other commons. He moved the omission of the words— Letting the pasturage of a part of the Common for any term not exceeding 21 years, and mortgage of such lease.

§ SIR THOMAS ACLAND
said, there was no other means of preserving this common from the encroachments of the sea.

§ Sir WILLIAM HARCOURT
said, the words would apply to all commons, as they were general and not particular.

§ Mr. GREGORY
said, the Committee might very well leave it to the Commissioners to see that the proposal was carried out for its legitimate object.

§ Mr. RYLANDS
supported the Amendment.

§ Mr. FAWCETT
said, the proposal would infringe the main object of the Bill.

§ Mr. BERESFORD HOPE
said, there was no necessity for creating such a long vested right in the pasturage as 21 years. It might be let from year to year.

§ Sir THOMAS ACLAND
said, that if the pasturage of Westward Ho could not be let a portion of the common must be sold to raise sufficient funds for the protection of the remainder.

Mr. ASSHETON CROSS
thought there was no necessity for a lease, and security should be taken that the land so let should not be inclosed.

§ Mr. WALSH
moved the following clause:— (Appointment of valuer to be confirmed by Commissioners.) An appointment of a valuer after the passing of this Act shall not be valid until it has been confirmed by the Commissioners. The Commissioners may disapprove of a valuer on the ground of his in competency, interest, want of impartiality, or any reasonable cause, and where they so disapprove of a valuer may call a meeting, and a meeting may be held to appoint, and another person appointed (subject to the approval of the Commissioners) to be valuer in like manner 1571 as if no previous meeting had teen held, and no valuer had been previously appointed, and so on until a valuer approved by the Commissioners is appointed. The ground upon which he moved the clause was, that a man appointed valuer, might be incompetent or interested, and in other respects not the proper person to appoint.

§ Sir WILLIAM HARCOURT
moved the following clause:— The unlawful inclosure of any Common or part of a Common shall, after the passing of this Act, be deemed to be a public nuisance. The hon. and learned Member said, he did not propose in this Amendment to trench upon the rights of property. That was out of the question. He wished only to interfere with unlawful inclosures, and that he believed was the object which the Home Secretary had in view. When a party came to Parliament and got a power to inclose a common, Parliament protected him; and he thought, with regard to uninclosed commons, the same legal right of protection should be given to the poor, and any invasion of it should be regarded as an illegal act against the public rights, and one which the public had a right to resist. But the poor were not in circumstances to bring an action in a Court of Law to defend their right, and the Parliament should therefore protect them, so that the party illegally inclosing should be compelled to remove the nuisance. The evil of the present state of things was that there were encroachments being made, not under the Statute of Merton, nor under any Common Law right, but by force of the strong arm, or rather the strong purse, of the person either encroaching on or inclosing a common, trusting that those who had a right to resist him would not be powerful enough to do so. He approved of the course which the Home Secretary had adopted with regard to encroachments on village greens, and he only wanted him to take the same course with reference to commons. The effect of the clause which he proposed would be to give a larger locus standi to resist unlawful inclosures—that was, instead of giving it to a few commoners, who might be poor, they would give it to the public 1572 at large. The result of making it a public nuisance to unlawfully obstruct or inclose a common would be that any one might abate it, and then the person who put up the obstruction or inclosed the common must prove his title. By adopting this clause the Committee would recognize in the public some right in the commons, and if they were not prepared to make that admission, then the Bill would be of no use at all. He believed the time had come when they ought to recognize that there was a public advantage in these commons which the public had a right to protect. Mr. Augustus Smith, whom he regarded as a public benefactor, prevented the inclosure of a beautiful common by pulling down the railings which had been erected; but he happened to be a commoner, and therefore had a locus standi, which enabled him to act. In like manner, the Corporation of London, having a locus standi, were able to preserve Epping Forest for the public; but they ought not to allow the prevention of a public wrong to depend on the accident of a wealthy person or body having a locus standi. He believed the Home Secretary was as anxious as anyone could be to prevent unlawful inclosures; and he hoped, therefore, that he would accept the clause either in its present or in any other form that would effect that object.

MR. ASSHETON CROSS
said, he did not think the hon. and learned Member quite saw the effect of his own clause. He said he did not want to trench on any rights, but the effect of the clause would be to do so. There was a very great distinction between a village green or a highway and a common. A village green was clear and defined; everybody knew what it was, and nobody had a right to encroach on or inclose it. Therefore, any inclosure of it was practically unlawful. So, again, in the case of the Queen's highway. No one had a right to inclose it, and any obstruction of it would be a public nuisance, which any one would have a right to abate. But 1573 in the case of commons it was admitted that there were persons who had a right, under certain conditions, to inclose them. Suppose the lord of the manor, with the consent of the commoners, proceeded to make an inclosure, which he had a perfect right to do, it was clear, if this clause were adopted, that any one who said this was an unlawful inclosure would have a right to indict him for a public nuisance. That appeared to him (Mr. Assheton Cross) to trench on the rights of property. Again, though the lord and commoners had legally inclosed, if they afterwards wished to sell any portion of the common they would never be able to make out a title, for 30 years after the inclosure some one could come forward and say it was a nuisance, and abate it. If that was not trenching on private rights, he did not know what was. If the clause said that the inclosure of a common, when it was proved to be unlawful, was a nuisance, he would not object to it; but he could not accept the proposal of the hon. and learned Member in the form in which it now stood before the Committee.

§ SIR HENRY JAMES
pointed out that if a nuisance were erected on what was called a village green the first thing to be determined would be what the limits of the village green were, and therefore the very same question would be raised as in the case of the unlawful inclosure of a common. The suggestion of the right hon. Gentleman to apply the clause to cases where common had been declared to be unlawfully inclosed would be of no advantage whatever, because the tribunal having declared the inclosure unlawful it would, of course, be abated. His hon. and learned Friend's Amendment stood on the foundation that the inclosure was unlawful. The objection that a man might be indicted for an inclosure which was subsequently found to be lawful applied to every case of an indictment being brought against an innocent man. The clause simply amounted to this, that whereas at present a commoner could abate an inclosure if it were unlawful, the clause, if adopted, would give that power to the inhabitants generally.

The ATTORNEY GENERAL
said, that the village greens referred to in the Bill were only those greens or recreation grounds which had an old and defined boundary. The inclosure of such a green 1574 would be unlawful, and he saw no reason why such an act should not be treated as a public nuisance. To say, however, that any one who considered the inclosure of a particular common a nuisance would have a right to throw the inclosure down and abate it would be to leave the owner, although he had acted legally, practically without a remedy, for he could only proceed by an action at law against those who had thrown down the inclosure, who, in all probability, would be unable to satisfy his claim for damages. It would also be objectionable that a man, if he had unlawfully inclosed a common, should be liable after the lapse of 60 years to be proceeded against by indictment. No lapse of time would, under such circumstances, give him a title to the property. The law at present gave lords of manors and commoners a right to inclose under certain conditions; but the effect of this clause, if it was agreed to, would be far too stringent on the owners of property, whose rights the Bill set out by declaring them to be preserved.

§ MR. SANDFORD
said, the clause would only apply to the owners of property who had illegally inclosed commons, not to those by whom they had been legally inclosed. Lords of the manor or others would be deterred from making illegal inclosures, by the knowledge that they forbade them, and provided a direct means of preventing them. He thought that principle ought to be adopted not only with reference to individual instances, but on the grounds of public policy, and the clause would really be one of the most valuable in the Bill if the Amendment of the hon. and learned Gentleman was adopted.

§ MR. SHAW LEFEVRE
said, the Amendment simply gave the public the power of calling upon lords of manors to show their right to inclose. The Bill had in some respects gone in that direction; and this Amendment, while it would not interfere with any existing right, would certainly prevent illegal inclosures.

§ MR. FAWCETT
said, if the Amendment was not adopted the Bill would leave untouched the greatest evils of the present law. They all knew cases in which village greens and commons had been gradually filched from the public; but if this Amendment were agreed to it would give the public a right to re- 1575 claim such illegal appropriations without regard to the lapse of time. If that right were not given, when the Bill came to be examined by those outside who were interested in the matter it would be pronounced to be worthless.

§ Sir WILLIAM HARCOURT
said, he had as much respect for the rights of property as either the Home Secretary or the Attorney General, and the Amendment did not trench upon these rights in the slightest. One of the arguments of the Attorney General against the Amendment was that it would prevent the legalization of illegal inclosures after the lapse of time—say 30 years. That was just what he and those who agreed with him wanted to do. The Bill for lords of manors was an admirable one, and that was no doubt the reason why it appeared to give such satisfaction to the hon. Member for Worcestershire (Mr. Knight) who was the greatest incloser in the country. They might be defeated on a division; but at the last moment and at the last stage of the Bill he felt that they were bound to enter a protest against the power to make illegal inclosures, which would be left untouched by the Bill.

MR. LOPES
opposed the clause as giving an entirely new remedy, and as being an invasion of existing rights of property.

§ MR. KNIGHT
stated that he had never made an illegal inclosure.

§ MR. BERESFORD HOPE (for Lord Henry Scott)
moved in the Preamble, page 2, line 4, to leave out after "commons" to "interests," in line 6, and insert— And that inclosures of Commons should not he hereinafter made unless it can be proved to the satisfaction of the said Commissioners and of Parliament, that such inclosure will be of benefit to the neighbourhood as well as to private interests, and to those who are legally interested in any such Commons.

MR. ASSHETON CROSS
said, he had no objection to the Amendment, but he suggested that words should be inserted stating that a preference should be given to regulations over inclosure schemes.

§ Mr. BERESFORD HOPE
thought this would be an improvement.

§ Mr. FAWCETT
moved in page 2, line 16, after "whereas," to insert— It is no longer expedient, as recited by 'The General Inclosure Act, 1845,'to facilitate the inclosure of Commons, but.

MR. ASSHETON CROSS
expressed his belief that the Amendment just agreed to would meet all the purposes they had in view.